SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter came before the Administrative Law Judge Division (ALJD or Division) for a contested case hearing as a result of the South Carolina Department of Health and Environmental Control's (DHEC or Department) issuance of a $5,700 civil monetary penalty and suspension of Respondent's license to operate both Jolly Rest More Adult Residential Homes #1 and #2. The penalties and suspensions were imposed for numerous violations of S.C. Code Regs. 61-84 (Supp. 1997) Standards for Licensing Community Residential Care Facilities.⁽¹⁾ A hearing was held before me on May 12, 1999, at the Administrative Law Judge Division.

BURDEN OF PROOF

The Department, through its Administrative Order, is alleging that the Respondent violated

its regulations. Basic principles of administrative law establish that an agency bears the burden of proof in an enforcement action. See, Peabody Coal Co. v. Ralston, 578 N.E. 2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989). Because the Department is seeking enforcement of its Administrative Order, it bears the burden of proof in establishing that the Respondent committed the alleged violations. The caption, therefore, is amended to reflect the correct allocation of the burden of proof.

ISSUES PRESENTED

The issues presented in this matter are whether the Department's decision to issue Respondent a civil monetary penalty and suspend her license to operate are consistent with the State Certification of Need and Health Facility Licensure Act and S.C. Code Regs. 61-84 (Supp. 1997).

FINDINGS OF FACT

Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of evidence:

General Findings

1. Notice of the date, time, place, and nature of the hearing was timely given to the parties.

2. Respondent Jolly Rest More Adult Residential Care Home #1 and #2 (Jolly Rest More) are adult community residential care facilities (CRCF) operating in Orangeburg, South Carolina, under the direction of Darlene Castor, administrator, and Lynn P. Smith, licensee. A CRCF is defined in S.C. Code Regs. 61-84 § 101(E) (Supp. 1997) as "a facility which offers room and board and which provides a degree of personal assistance for a period of time in excess of twenty-four consecutive hours … specifically for the mentally ill or drug addicted or alcoholic."

Compliance History

3. Jolly Rest More #1 and #2 are CRCFs with a history of noncompliance with the State Certification of Need and Health Facility Licensure Act and S.C. Code Regs. 61-84 (Supp. 1997). Notwithstanding the events in dispute, enforcement encounters between the Department and Jolly Rest More #1 include the following:

• July 1, 1992 -- Execution of a Consent Order in which Respondent pledged to remedy numerous violations of S.C. Code Regs. 61-84 cited by DHEC inspectors during 1991-92.



• March 25, 1997 -- Revocation of Respondent's license to operate due to its continual failure to: employ a licensed administrator; ensure all staff was administered a current tuberculosis (TB) test; provide proper recreational programs; properly maintain residents' care plans; properly maintain residents' medication administration records; and post current menus.



• August 21, 1997 -- Execution of a second Consent Order in which Respondent pledged to remedy the violations of S.C. Code Regs. 61-84 cited by DHEC inspectors during the March 25, 1997 inspection. In consideration of this promise, the Department agreed to withdraw its revocation of Respondent's license to operate; however, in lieu of this withdrawal, DHEC determined it appropriate to assess the facility a $12,000 civil monetary penalty. The Department subsequently suspended $8,100 of this assessment with the condition that if further violations of the regulations occurred, the Department would require payment of all or part of that sum (i.e., DHEC could "call-in" the suspended penalty).



• April 27, 1998 -- Due to violations discovered during its February 6, 1998 inspection of the facility, the Department exercised its contractual rights stemming from the August 21, 1997 Consent Order requiring Respondent to: (1) immediately pay the Department the balance of the assessed penalty ($2,044);⁽²⁾ and (2) immediately pay the Department $5,600 of the suspended penalty.

4. Notwithstanding the events in dispute, enforcement encounters between the Department and Jolly Rest More #2 include:

• March 25, 1997 -- Revocation of Respondent's license to operate due to its failure to employ a licensed administrator and file either an application or license fee for the year December 1, 1996-November 30, 1997.



• August 21, 1997 -- Execution of a Consent Order in which Respondent pledged to remedy the violations of S.C. Code Regs. 61-84 cited by DHEC inspectors during the March 25, 1997 inspection. In consideration of this promise, the Department agreed to withdraw its revocation of Respondent's license to operate. However, in lieu of this withdrawal, DHEC determined it appropriate to assess the facility a $2,000 penalty. The Department suspended $1,000 of this penalty with the condition that this sum could be "called-in" if the Department discovered noncompliance with the regulations during future inspections.



• April 28, 1998 -- Due to violations discovered during its February 26, 1998 inspection of the facility, the Department determined it appropriate to issue a $6,750 civil monetary penalty stemming from the Respondent's failure to: ensure all staff was administered a current tuberculosis (TB) test; ensure that all staff had received requisite in-service training; possess a current heating inspection report on file; properly maintain the facility's structure, furnishings and its component parts in good repair and operating condition; observe proper housekeeping standards; properly maintain residents' medication administrative records; employ proper methods for washing and sanitizing the facility's dishware and utensils; comply with applicable state and local design and construction codes (e.g., electrical codes and fire and life safety codes); and provide adequate storage area for facility and resident property.

Violations at Jolly Rest #1

5. On July 8, 1998, Department personnel conducted an inspection of Jolly Rest More #1. The inspection revealed the following violations:

• Failure to properly maintain residents' medication administration records (Class I);



• Failure to document annual physician attestation to the propriety of residential care placement for all residents (Class I);



• Failure to properly store residents' prescribed medications in a secure (i.e., locked) area (Class I);



• Improperly admitting residents without having medical examination conducted prior to placement (Class II);



• Failure to properly maintain facility's structure, furnishings and its component parts in good

repair and operating condition. (Class II);

• Failure to observe proper housekeeping standards (e.g., presence of dirt accumulation, insects, urine odors, unclean bathrooms, etc.) (Class II);



• Failure to properly store facility food products (Class II);



• Failure to document/ensure administrator's annual review of the facility's policies and procedures for service and care (Class II);



• Failure to document/ensure compliance with physician's order to provide special diet to a resident (Class II);



• Failure to properly execute the facility's refund policies and procedures (Class II);



• Failure to document/ensure that all staff had received requisite orientation training (Class II);



• Failure to document/ensure that all facility staff had been administered annual tuberculin (TB) skin tests (Class III);



• Failure to document/ensure that all facility staff had been administered annual physical examinations (Class III);



• Failure to document/ensure that all facility staff had been administered annual physical examinations (Class III);



• Failure to document/ensure that all staff had received requisite in-service (Class III);



• Failure to properly maintain a facility disaster plan (Class III);



• Failure to provide a mirror and chairs in a resident bedroom (Class III); and



• Repeated failure to provide humanizing touches (e.g., placement of clocks, pictures, plants, etc.) in all facility bedrooms (Class III).

Violations at Jolly Rest #2

6. On August 27, 1998, Department personnel conducted an inspection of Jolly Rest More #2. The inspection revealed the following violations:

• Failure to produce physicians' orders and recommendations for all medications administered to facility's residents (Class I);



• Failure to properly maintain residents' medication administration records (Class I);



• Failure to properly store residents' prescribed medications in a secure (i.e., locked) area (Class I);



• Failure to destroy and/or dispose of expired resident medications (Class I);



• Failure to document/ensure administration of annual physical examinations for all facility's residents (Class I);



• Failure to properly maintain residents' individual care plans (Class II);



• Failure to discard and make unavailable for resident consumption expired food products (Class II);



• Failure to document/ensure administrator's annual review of the facility's policies and procedures for service and care (Class II);



• Failure to properly maintain facility's structure, furnishings and its component parts in good repair and operating condition (Class II);



• Repeated failure to observe proper housekeeping standards (e.g., presence of: dirt accumulation, insects, improper storage of paint in residents' living area, etc.) (Class II);



• Failure to employ proper methods for washing and sanitizing the facility's dishware and utensils (Class III);



• Failure to produce records of food purchases made within 90 days of inspection (Class III);

• Improper use of a bar of soap in residents' bathroom (Class III); and



• Failure to properly label all food products found in the facility refrigerator (Class III).

Penalties

7. The Department seeks the imposition of a $5,700 penalty. ⁽³⁾ Additionally, the Department seeks to suspend the Respondent's license to operate both facilities until the Department determines through inspection that the facilities are in substantial compliance with R.61-84. I find that the $5,700 penalty is appropriate in this case. Furthermore, suspension of Respondent's license is proper due to the presence of numerous Class I violations and repeat violations of S.C. Code Regs. 61-84 (Supp. 1997).

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. The ALJD has subject matter jurisdiction over contested cases arising from CRCF regulation enforcement disputes. S.C. Code Ann. §§ 1-23-310 to -390 (Rev. 1986 & Supp. 1998); S.C. Code Ann. § 1-23-600(B) (Supp. 1998); S.C. Code Ann. § 44-7-320(B) (Supp. 1997).

2. A Community Residential Care Facility is defined in S.C. Code Ann. Regs.

61-84 § 101(E) (Supp. 1997) as "a facility which offers room and board and which provides a degree of personal assistance for a period of time in excess of twenty-four consecutive

hours. . . ." Personal assistance may include assisting in one or more of the following: helping the resident with activities of daily living; helping the resident to make appointments and to secure transportation in order to receive support services; being aware of the resident's whereabouts; and monitoring the activities of the resident while on the premises of the residence to ensure his or her health, safety, and well-being. The degree of care given at a CRCF is largely dictated by the needs of its residents. A CRCF offers "or represents to the public that it offers" a "beneficial or protected environment specifically for the mentally ill or drug addicted or alcoholic. . . ." R. 61- 84 § 101(E) (Emphasis added).

3. The State Certification of Need and Health Facility Licensure Act governs the operation of CRCFs. S.C. Code Ann. §§ 44-7-250 to -370 (Supp. 1997). Additionally, S.C. Code Ann. Regs. 61-84 (Supp. 1997), Standards for Licensing Community Residential Care Facilities, is the applicable regulation governing Community Residential Care Facilities. See, S.C. Code Ann. §§ 44-7-150(3), -250 (Supp. 1997).

4. A valid license issued by the Department is necessary to operate a Community Residential Care Facility. S.C. Code Ann. § 44-7-260 (Supp. 1997).

5. CRCFs are required to comply with the provisions of the State Certification of Need and Health Facility Licensure Act and S.C. Code Regs. 61-84 (Supp. 1997). Specifically, the Licensee of a CRCF is required to be familiar with the Standards for Licensing Community Residential Care Facilities and is responsible for maintaining those standards in the facility. S.C. Code Ann. Regs. 61-84 § 202 (Supp. 1997).

6. S.C. Code Regs. 61-84 § 103 (Supp. 1997) categorizes violations of the Standards for Licensing Community Residential Care Facilities as follows:

A. Class I violations are those which the Department believes present "an imminent danger to the residents or other occupants of the facility or a substantial probability that death or serious physical hard could result therefrom."

B. Class II violations are those which the Department determines to have a direct or immediate relationship to the health, safety or security of the facility's residents.

C. Class III violations are those which are not classified as serious; nonetheless, they have a relationship to the health, safety or security of the facility's residents and must be corrected within a specified period of time.

7. CRCFs which violate the State Certification of Need and Health Facility Licensure Act and S.C. Code Regs. 61-84 (Supp. 1997) are subject to DHEC sanction. S.C. Code Ann. § 44-7-320(A)(1) (Supp. 1997). Those sanctions may include issuance of civil monetary penalties and suspension of the facility's license to operate. Id.

8. S.C. Code Ann. § 44-7-320(A)(2) (Supp. 1997) provides: "Consideration to deny, suspend, or revoke licenses or assess monetary penalties is not limited to information relating to the current licensing year but includes consideration of all pertinent information regarding the facility and the applicant." Additionally, in determining the appropriate action to take against a facility, the Department considers the following factors: "specific conditions and their impact or potential impact on health, safety or welfare; efforts by the facility to correct; overall conditions; history of compliance; and any other pertinent conditions." S.C. Code Ann. Regs. 61-84 § 103 (Supp. 1997).

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Respondent remit the sum of $5,700 to the Department within 30 days from the date of this Order.

IT IS FURTHER ORDERED that Respondent is prohibited from admitting any additional residents to either Jolly Rest More #1 or #2 for a period of 12 months from the date of this Order. However, Respondent may request a reevaluation of its facilities by DHEC personnel prior to the expiration of the 12 month period. Should the Department determine that either (or both) facility(ies) substantially comply(ies) with the requirements of the State Certification of Need and Health Facility Licensure Act and S.C. Code Regs. 61-84 (Supp. 1997), the Order prohibiting admission of additional residents will be automatically lifted (i.e., without leave of this Court) for the facility(ies) found to be in compliance.

IT IS FURTHER ORDERED that the caption of this case is hereby amended to reflect the the Department as the Petitioner in this action.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

July 20, 1999

Columbia, South Carolina

1. The authority contained within the 1997 supplement governed the Department's inspection of Respondent's facility and its subsequent issuance of penalties; thus, citation to the substantive law and regulations pertaining to this case will be made to the 1997 supplement. Because this appeal was initiated subsequent to the publishing of the new supplement, citations to the procedural law (i.e., the Administrative Procedures Act) will be made to the 1998 supplement.

2. The terms of the August 21, 1997 Consent Order permitted Respondent to pay the assessed penalty of $3,100 to the Department in 12 monthly installments. The Department retained the right to "call-in" the entire balance if it discovered any noncompliance with the regulations by Respondent during the 12 month period.

3. Separating the total monetary penalty by facility, the Department assessed Jolly Rest More #1 $2,500 and Jolly Rest More #2 $3,200.